Defendant, Leslie A. Grable, appeals as of right from an order granting summary disposition in favor of Richard E. Albert, for whom the village of Dimondale has been substituted on appeal. Grable argues that the trial court erroneously quieted title to his land in Richard E. Albert, who later sold the land to Dimondale, because the tax deed Albert acquired to Grable's
I. Statutory Background
This case involves the application of three separate and distinct provisions of the Internal Revenue Code, each of which relate to the process by which the federal government forecloses on property in order to collect unpaid federal taxes. The first of these provisions is the "notice and demand" requirement of 26 U.S.C. 6303(a), which prescribes the process the Internal Revenue Service (IRS)
Where it is not otherwise provided by this title, the Secretary [of Treasury] shall, as soon as practicable, and within 60 days after the making of an assessment of a tax pursuant to section 6203, give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof. Such notice shall be left at the dwelling or usual place of business of such person, or shall be sent by mail to such person's last known address. [Emphasis supplied.]
The second provision is the "notice of seizure" requirement of 26 U.S.C. 6335(a), which delineates the process by which the IRS must notify a taxpayer of a seizure of property for failing to pay the tax and states:
As is readily apparent, the assessment and demand statute, 26 U.S.C. 6303(a), requires service by leaving the notice at the dwelling or usual place of business of the taxpayer or by mail. In contrast, the seizure statute, 26 U.S.C. 6335(a), requires the IRS to give notice by personal service or by leaving the notice at the usual place of abode or business of the taxpayer. Only if the IRS cannot readily locate that taxpayer or if the taxpayer has no dwelling or place of business within the internal revenue district can the IRS give notice through the mail to the taxpayer's last known address.
The third provision governs notice of a proposed sale of seized property, 26 U.S.C. 6335(b), and requires the IRS to give notice to the taxpayer of the proposed sale in the same way the Secretary of Treasury would give notice of the seizure under 26 U.S.C. 6335(a). Additionally, this sale provision requires the IRS to give notice to the public through publication or posting.
II. Factual Background
According to Grable, in 1974, he and his wife acquired real property at 120 North Bridge Street in Dimondale, Michigan. The property is described as:
Apparently, during calendar years 1980, 1981, 1983, 1984, 1985, and 1986, Grable
III. Federal Procedural History
At roughly the same time the IRS gave these two notices to Grable in 1994, it also began the process of assessing, seizing, and selling property owned by Grable & Sons Metal Products, Inc. (Grable Corporation) to enforce a levy for $2,916,474.58 in unpaid taxes. Apparently, the IRS took action with respect to property located at 116 Bridge Street, Dimondale, Michigan, and 601-701 Plains Road, Eaton Rapids, Michigan. The Grable Corporation contested the matter and, on June 3, 1994, the United States District Court for the Western District of Michigan, Gordon J. Quist, J., issued an opinion categorizing the case, along with several additional cases involving Grable, the Grable Corporation, and others, as "tax protester" cases (the court later deemed the cases against these individuals and corporations as "tax evader" cases). In any event, the court determined, among other things, that the government had given the proper "notice and demand" under 26 U.S.C. 6303(a) to the Grable Corporation. In an unpublished opinion, the United States Court of Appeals for the Sixth Circuit affirmed the judgment of the district court.
This federal litigation, however, has little relevance to this action to quiet title for three reasons. First, the litigation involved the Grable Corporation and not Grable himself. Second, the litigation did not, as Dimondale conceded during oral argument before this Court, explicitly involve the property at 120 North Bridge Street. Third, the litigation involved the "notice and demand" requirement of 26 U.S.C. 6303(a), not the "notice of seizure" requirement of 26 U.S.C. 6335(a).
IV. The Instant Quiet Title Action
In December 1994, Grable filed a notice (hereinafter the Grable notice) with the Register of Deeds for Eaton County to inform all bidders that he would challenge any sale of enumerated pieces of property in the United States District Court for the Western District of Michigan. According to the village of Dimondale, among the properties described in the Grable notice was the property at 120 North Bridge Street. Rather clearly, then, in December 1994, Grable had received some type of actual notice of, in the words of the Grable notice, "the sale of personal or real property of Grable and Sons Metal Products, Inc. and Leslie A. Grable." (Emphasis supplied.)
The IRS sold the property at 120 North Bridge Street at auction to James T. Holberg in December 1994. Holberg obtained a tax deed to the property in November 1995 and, in June 1997, Holberg conveyed the property at 120 North Bridge Street to Richard E. Albert. Albert filed this action to quiet title in September 1997. Grable answered the complaint and asserted his affirmative defense that the tax sale to Holberg was invalid from its inception because the IRS failed to comply with the notice requirements in 26 U.S.C. 6335. In his answer to the complaint, Grable asked the court to dismiss the complaint and grant "such further relief as is just and proper."
In early 1998, Albert and Grable filed cross-motions for summary disposition. Grable moved for summary disposition under MCR 2.116(C)(10), again claiming that because the sale was void, Albert had no
Albert moved for summary disposition under MCR 2.116(C)(9), asserting three main arguments. First, Albert argued that because the federal courts had repeatedly held Grable's challenges to the IRS procedures to be meritless, res judicata barred this latest defense, which was or could have been raised in the federal litigation. Second, Albert claimed that a tax deed is prima facie evidence of the facts stated therein and effective to convey all rights, title, and interest of the delinquent taxpayer, leaving Albert with title superior to any interest Grable had in the property. Third, Albert contended that Grable had actual notice and every opportunity to raise the issue of the inadequate notice before the tax sale but had failed to redeem the property within a reasonable amount of time, which was inequitable. In a supplemental brief, Albert also argued that this Court had held that "under 26 U.S.C. 5335[sic] service of notice of sale by mail was entirely permissible."
Grable responded that none of the litigation in the federal courts involved issues raised in the present litigation because (1) those cases did not involve the notice requirements of 26 U.S.C. 6335(a), (2) those cases concerned only personal property owned by a corporation, and (3) the IRS did not sell the property in issue in this case until after that litigation was final in the federal district court, and, up to the time of the sale, the IRS could have complied with the requirements of 26 U.S.C. 6335(a) by giving him notice of the seizure by personal service.
In May 1998, the trial court granted Albert's motion for summary disposition. The trial court reasoned that the general rule in Michigan is that where "a serious defect occurs in the tax sale, it may be attacked by the owner of the premises, provided he acts promptly and does equity." The trial court acknowledged that Grable notified prospective buyers that he would sue concerning the validity of the seizure. However, the trial court also noted that Grable presented many arguments to the federal district court challenging the seizure of the property at 120 North Bridge Street, including an argument that notice from the IRS was insufficient under 26 U.S.C. 6303, but lost those arguments repeatedly in the federal court. (Indeed, the federal district court sanctioned Grable for instituting frivolous litigation.) The trial court also stated that the purpose of the notice requirement is to prevent disputes over whether a taxpayer received notice, but Grable never disputed that he received actual notice of the seizure. The trial court also remarked that Grable had the opportunity to redeem the property, did not do so, and then remained silent for two years and nine months after the sale; Grable only acted to defend his rights in the property at 120 North Bridge Street when Albert brought the action to quiet title, and only then did Grable contend that notice of the seizure was improper. The trial court concluded that Grable had acted in an untimely and inequitable fashion and ultimately entered judgment quieting title in favor of Albert.
After the trial court quieted title to the property at 120 North Bridge Street in Albert, Albert conveyed that property to Dimondale. When Grable appealed the trial court's decision to quiet title in Albert, this Court granted Dimondale's motion to be substituted as the appellee in this case.
V. The Parties' Arguments
Grable does not explicitly challenge the trial court's decision to grant Albert summary disposition pursuant to MCR 2.116(C)(9). Rather, he claims that the sale to Holberg was void because the IRS failed to comply strictly with the statutorily
Dimondale, arguing in Albert's stead, responds that the trial court properly granted summary disposition because (1) Grable failed to plead a valid defense, (2) the tax title is prima facie evidence of the facts stated therein, and (3) Grable had actual notice and every opportunity to raise the issue of the inadequacy of notice before the sale, but inequitably delayed acting.
VI. Standard Of Review
VII. Summary Disposition In Favor of Albert Under MCR 2.116(C)(9)
The trial court did not specify the subsection of MCR 2.116(C) under which it granted summary disposition. However, because the trial court granted summary disposition in favor of Albert on the basis of his argument that Grable had failed to assert a valid defense, we assume that it ruled under MCR 2.116(C)(9), the court rule Albert cited in his motion for summary disposition.
Summary disposition under MCR 2.116(C)(9) is proper if a defendant fails to plead a valid defense to a claim. Nicita v. Detroit (After Remand), 216 Mich.App. 746, 750, 550 N.W.2d 269 (1996). A motion under MCR 2.116(C)(9) tests the sufficiency of a defendant's pleadings by accepting all well-pleaded allegations as true. Lepp v. Cheboygan Area Schools, 190 Mich.App. 726, 730, 476 N.W.2d 506 (1991). If the defenses are "`so clearly untenable as a matter of law that no factual development could possibly deny plaintiff's right to recovery,'" then summary disposition under this rule is proper. Id., quoting Domako v. Rowe, 184 Mich.App. 137, 142, 457 N.W.2d 107 (1990).
Albert alleged that the tax deed extinguished Grable's interest in the property at 120 North Bridge Street. Grable answered that the tax sale had not transferred his interest and affirmatively claimed that the deed was void because of the IRS's failure to comply with the requisite notice procedures in 26 U.S.C. 6335(a). Thus, Grable categorically denied the material allegations of the complaint and stated a legally cognizable defense. See Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 47, 457 N.W.2d 637 (1990), quoting Pontiac School Dist. v. Bloomfield Twp., 417 Mich. 579, 585, 339 N.W.2d 465 (1983) ("`[W]hen, as here, a material allegation of the complaint is categorically denied, summary [disposition] under [MCR 2.116(C) (9)] is improper.'" [alterations in Nasser]).
Further, a court may look only to the parties' pleadings in deciding a motion under MCR 2.116(C)(9). MCR 2.116(G)(5). "Pleadings," as defined in MCR 2.110(A), include only a complaint, a cross-claim, a counterclaim, a third-party complaint, an answer to any of these, and a reply to an answer. A motion for summary disposition is not a responsive pleading under MCR 2.110(A). Huntington Woods v. Ajax Paving Industries, Inc. (On Rehearing), 179 Mich.App. 600, 601, 446 N.W.2d 331 (1989). The trial court in this case noted many alleged facts presented to it only in the wealth of documentary evidence submitted by the parties, not in the pleadings. The trial court relied on these alleged facts when it determined that Grable had acted inequitably, which is an improper foundation for granting summary disposition under MCR 2.116(C)(9). Thus, the trial court clearly erred in granting summary disposition under MCR 2.116(C)(9).
VIII. Summary Disposition In Favor Of Grable Under MCR 2.116(C)(10)
The trial court's error in granting Albert summary disposition does not end our analysis, because, in granting that motion, the trial court simultaneously denied Grable's motion for summary disposition under MCR 2.116(C)(10). Accordingly, we must determine whether the trial court also erred in denying Grable's motion.
Under MCR 2.116(C)(10), summary disposition may be granted if there "is no genuine issue as to any material fact, and the moving party is entitled to judgment ... as a matter of law." MCR 2.116(C)(10). A court must consider the pleadings as well as affidavits, depositions, admissions, and other documentary evidence in the light most favorable to the nonmoving party. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999). However, the nonmoving party must produce evidence showing a material dispute of fact left for trial in order to survive a motion for summary disposition under this court rule. MCR 2.116(G)(4); Etter v. Michigan Bell Telephone Co., 179 Mich.App. 551, 555, 446 N.W.2d 500 (1989).
Although Grable did not dispute that he received actual notice of the seizure of the property at 120 North Bridge Street by certified mail, Albert declined to admit that notice by certified mail was defective and specifically asserted that he needed an opportunity to review the IRS records to determine whether the claimed defect actually existed. Accordingly, Albert argued that if the trial court denied his motion under MCR 2.116(C)(9), it should deny Grable's motion under MCR 2.116(C)(10) because discovery was not yet complete. "As a general rule, summary disposition is premature if granted before discovery on a disputed issue is complete." Dep't of Social Services v. Aetna Casualty & Surety Co., 177 Mich.App. 440, 446, 443 N.W.2d 420 (1989). "However, summary disposition may be proper before discovery is complete where further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion." Prysak v. R L Polk Co., 193 Mich.App. 1, 11, 483 N.W.2d 629 (1992).
It is clear that Albert did not carry his burden of providing proof of proper notice at the time the trial court ruled on the motions for summary disposition. Etter, supra. Albert did not assert or provide an evidentiary basis for what he believes he might find to support the existence of a factual dispute. See Bellows v. Delaware McDonald's Corp., 206 Mich.App. 555, 561, 522 N.W.2d 707 (1994) ("If a party opposes a motion for summary disposition on the ground that discovery is incomplete, the party must at least assert that a dispute does indeed exist and support that allegation by some independent evidence."). Nor is it apparent what other information the parties might be able to produce concerning this issue beyond an official IRS record indicating that IRS staff mailed a written notice of the seizure to Grable by certified mail. There is no reason to believe that the IRS provided duplicate notice to Grable by certified mail and one of the proper means identified in 26 U.S.C. 6335(a). Indeed, the IRS evidently thought the notice of seizure by certified mail was sufficient, because it went ahead with the tax sale. Thus, summary disposition before discovery closed was not premature because additional discovery was unlikely to reveal "factual support for" Albert's, and now Dimondale's, arguments. Prysak, supra.
The absence of this evidence of proper notice had a conclusive effect on the action to quiet title. The law is clear that a tax sale purchaser cannot obtain clear title if the government failed to perfect its right to sell clear title by strict compliance with the provisions for notice of the levy, seizure, and sale. Ruff v. Isaac, 226 Mich.App. 1, 5-6, 573 N.W.2d 55 (1997); Goodwin v. United States, 935 F.2d 1061, 1065 (C.A.9, 1991). Absent literal
Recently, this Court determined that the IRS complied with the notice procedure of 26 U.S.C. 6335(a) when it served the plaintiffs by certified mail because they could not be "readily located." Ruff, supra at 8, 573 N.W.2d 55. However, this Court stated that the statute is unambiguous and should be given its plain meaning. Id., citing Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Here, there is no evidence that Grable could not be "readily located."
Furthermore: "[w]hen a delinquent taxpayer contests a third-party purchaser's title to property acquired through a tax sale, the general rule is that `the burden of showing literal compliance with statutes governing the sale of land for taxes is upon the claimant under the tax sale.'" Ruff, supra at 5, 573 N.W.2d 55, quoting McAndrews v. Belknap, 141 F.2d 111, 115 (C.A.6, 1944). On the facts presented, Albert, and now Dimondale, did not meet this burden. While this may appear to be an anomalous result in light of the evidence in the Grable notice that Grable minimally had actual notice of the proposed sale of the property at 120 North Bridge Street, we find nothing in the record that can serve to excuse the IRS from strict compliance with the requirements of 26 U.S.C. 6335(a) for notice of seizure. In the absence of that notice, the tax deed was invalid and the trial court should have quieted title in Grable by granting him summary disposition under MCR 2.116(C)(10) and entering a judgment to that effect.
Dimondale's additional arguments do not persuade us to reach a different result. For instance, Dimondale, as did Albert, contends that under 26 U.S.C. 6339(b), a tax deed is valid on its face because the deed is prima facie evidence of the facts stated in it. We do not quibble with that statement of the law. However, here, the tax deed stated:
Grable has rebutted this statement by showing inadequate notice, which neither Albert nor Dimondale has proved wrong by submitting contrary evidence. See Margiotta v. Dist. Director of Internal Revenue, Brooklyn, 214 F.2d 518, 522 (C.A.2, 1954). Therefore, the statement in the tax deed that it complied with all relevant statutory provisions has no effect on our decision.
Dimondale's and Albert's argument that Grable's inequitable delay in acting on his rights bars his claim to the property is similarly without merit. It is not at all clear in Michigan that the general rule that a party aggrieved by a defective tax sale must act promptly and equitably to avoid the sale applies when there was defective notice of a tax assessment, seizure, or sale. See Howard, supra at 508, quoting Detroit Trust Co. v. Lieberwitz, 275 Mich. 429, 436, 266 N.W. 406 (1936). In both Howard and Ruff, the taxpayers were plaintiffs who attempted to quiet title and, in doing so, opened the door to the respective defendants' claims that the plaintiffs acted inequitably. In this case, Grable, the defendant, did not
The trial court erred in three ways. First, it erroneously considered evidence outside the pleadings when granting summary disposition to Albert under MCR 2.116(C)(9). Second, the trial court ignored that Grable had pleaded a valid defense when asserting that the tax deed Albert possessed was invalid for lack of proper notice under 26 U.S.C. 6335(a). Finally, the trial court erroneously denied summary disposition to Grable when there was no issue of material fact left in dispute regarding whether Grable received proper notice when the IRS seized his property.
Reversed and remanded for an order of summary disposition in favor of Grable and judgment quieting title to the disputed property in him. We do not retain jurisdiction. Grable, having prevailed in full, may tax costs pursuant to MCR 7.219.